In this Feb. 13, 2018, file photo, former Gov. Paul LePage delivers the State of the State address to the Legislature at the State House in Augusta, Maine.

By Steve Mistler, Maine Public•January 4, 2019 5:32 pm

Earlier this week Maine Public reported that former Republican Gov. Paul LePage had pardoned a former GOP state legislator Jeff Pierce for a 35-year-old drug trafficking conviction. Pierce confirmed that he had received clemency for the felony conviction.

But if Pierce had not acknowledged the pardon, there is a good chance it would have remained secret because of a state law passed last year. Now, Gov. Janet Mills said she is reviewing that law to see if pardons and commutations should be made public again.

Pierce’s pardon made headlines because he is a former lawmaker who is under investigation by the Maine Warden Service for hunting with firearms, despite a felony conviction.

LePage pardoned more than 100 people in the seven years before the new privacy law took effect.

According to public records, 50 people sought hearings before the State Clemency Board last year. What is not known are their identities, or how many of them were granted pardons.

“The act made information disclosing that a person had received a pardon confidential,” said John Pelletier, chair of the Criminal Advisory Commission, an independent board that reviews and proposes changes to Maine’s criminal laws.

Pelletier said pardons were meant to be private in Maine, and the law enacted last year was designed to clear up an inconsistency which only partially shielded those seeking clemency.

Pelletier compared a pardon to being charged with a crime and getting acquitted.

“When someone has been charged with a crime, if they’re acquitted then the fact that they were charged becomes confidential, and a pardon acts in a similar way,” he said. “So someone has been convicted, the conviction is public. But if the governor gives them a pardon, then the fact they were charged and convicted becomes confidential.”

Private pardons make Maine an outlier compared to states where governors release the names of people who received clemency or commutations. In other states where pardons are kept private, there have been controversies.

Last year New York Gov. Andrew Cuomo refused to identify the names of 140 people he pardoned, arguing that disclosing their identities would deprive them of a second chance or, in some cases, subject them to deportation by immigration authorities.

But critics argue that concealing pardons raises questions about transparency and accountability, potentially leading to suspicions that some people received clemency as a personal or political favor. Those concerns prompted South Dakota to change its 20-year-old confidential pardon law in 2003.

Gov. Janet Mills said she is now considering a similar change to Maine’s new private pardon law. Mills was not available for an interview, but a spokesperson said in a statement that she generally believes that the public has a right to know about pardons granted by her or other governors.

Not all Democrats are in agreement on the issue.

“Shame isn’t the tool we should be using,” said Rep. Charlotte Warren, who co-chairs the Legislature’s Criminal Justice and PUblic Safety Committee. “People deserve second chances, and when the governor is saying you’ve done your time and I’m going to pardon you, or shorten your sentence through another process, you know, that’s saying you’ve paid your debt to society.”

But there could be complications to keeping pardons private as a way of advancing restorative justice. For one, Maine law requires people granted hearings by the governor’s pardon board to purchase legal notices — so their request, which includes their prior conviction, is public — but their pardon could remain private. In the case of a simple internet search, a person’s arrest or conviction may be well-documented, but their pardon may not be.

And that could have happened to Pierce. His criminal record was exposed during his unsuccessful bid for re-election, but his pardon remained a secret until he revealed it to Maine Public Radio.

Also, Maine’s pardon law is unlike those of other states, in that it doesn’t actually expunge a conviction, it just makes it confidential.

Depending on how the state’s new governor comes down on the issue, Maine could soon rejoin the majority of states that make gubernatorial pardons and commutations public.